Scaggs v. Com., 0192-86-3

• Citation: 5 Va.App. 1,359 S.E.2d 830
• Decision Date: 01 September 1987
• Docket Number: No. 0192-86-3,0192-86-3
• Parties: Timothy Lynn SCAGGS v. COMMONWEALTH of Virginia. Record
• Court: Court of Appeals of Virginia

Page 830

359 S.E.2d 830

5 Va.App. 1

Timothy Lynn SCAGGS v. COMMONWEALTH of Virginia.

Record No. 0192-86-3.

Court of Appeals of Virginia.

Sept. 1, 1987.

Emanuel Clabon Edwards, Roanoke, for appellant.

Leah A. Darron, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: KOONTZ, C.J., KEENAN and MOON, JJ.

KOONTZ, Chief Judge.

Timothy Lynn Scaggs was convicted by a jury of one count of robbery and use of a firearm in the commission of robbery, three counts of abduction, and three counts of use of a firearm in the commission of abduction (second or subsequent offense). Scaggs raises two issues on appeal: (1) whether the trial court erred by admitting into evidence an accomplice's out-of-court statement which incriminated the accomplice; and (2) whether it was proper to convict the defendant of "second or subsequent" uses of a firearm in the commission of crimes which occurred during the same sequence of events. Finding no reversible error, we affirm the convictions.

On March 2, 1985, at approximately 2:15 a.m., two men dressed in dark clothes and wearing gloves and panty hose masks approached Sharon Kelly, Lloyd Bishop, and William Hartless, all employees of the Pizza Hut on Brandon Avenue in the City of Roanoke, as they were closing the restaurant and preparing to leave. Kelly and Bishop were ordered at gun point to crouch on the floor. Hartless panicked, ran to the back of the restaurant and urinated in his pants. He was apprehended by one of the robbers and returned to the area where the two other employees were restrained. The robbers took the bank deposit bag containing approximately $600 and Kelly's purse containing approximately forty dollars. The three employees were then forced at gun point into a walk-in refrigerator in the back of the restaurant.

Over the next few minutes Kelly was led from the refrigerator several times and ordered at gun point to open the restaurant safe. She was unable to open the safe due to her fear under the circumstances. During one of the times Kelly was removed from the refrigerator, one of the robbers, whom she later identified as Scaggs, failed to pull down his mask and she was able to see his face. Both Kelly and Bishop identified Commonwealth's exhibit 13 as a gun looking "similar" to the silver handgun carried by this robber.

Over the objection of Scaggs, Tina Anderson testified that her boyfriend, Joey Goad, had come to her home on March 2, 1985, at 3:10 a.m. with a large sum of money. Anderson testified that Goad had no money the evening before and that he gave her $300 to $400 and told her that he had participated in the robbery of the Brandon Avenue Pizza Hut. Based on her conversation with Goad, Anderson recovered a silver handgun in her extra bedroom which was identified as Commonwealth's exhibit 13 at trial. Anderson also testified that Goad and Scaggs had come to her home the day before the robbery. Goad was not called as a witness by either the Commonwealth or Scaggs.

Toby Shannon, a fellow inmate with Scaggs, testified that Scaggs had discussed this robbery with him and had admitted that he and Goad committed the robbery. He further testified that Scaggs recounted the incident during the robbery where one of the Pizza Hut employees had attempted to run away and had urinated in his pants.

I.

The admissibility of the accomplice's out-of-court statement.

At trial and in this appeal, Scaggs objected to Tina Anderson's testimony that Joey Goad admitted to her that he participated in the Pizza Hut robbery because Goad's statement was hearsay. On appeal he further asserts that because Anderson testified that (1) Scaggs and Goad were associated and (2) Goad admitted his participation in the crime that this created an "impression of guilt by association" for the jury. Scaggs maintains that the impression of guilt by association was prejudicial to him as evidenced by the fact that during deliberations the court received an inquiry from the jury which read: "Why wasn't Joey Goad called?" The court responded:

There are all sorts of reasons why either side may not have wanted to call him. He could have been available presumably for either side to call. There is the possibility of a fifth amendment claim, a privilege against self-incrimination, there are all sorts of things or reasons why either the Commonwealth or the defendant for tactical reasons didn't feel that they wanted to call him. He was not called, and to repeat you are not to conjure up what you think he might have said or why one side didn't call him or not.

The Commonwealth correctly concedes that a co-conspirator's statements made in the defendant's absence after the termination of the conspiracy are inadmissible in evidence at the defendant's trial because such statements are hearsay. The Commonwealth, however, argues that Goad's admission was properly admitted into evidence as a third-party declaration against penal interest, a recognized exception to the hearsay rule.

In Morris v. Commonwealth, 229 Va. 145, 326 S.E.2d 693 (1985), our Supreme Court stated the rule and its application as follows:

[I]t is settled in Virginia that, while a declaration against penal interest is recognized as an exception to the hearsay rule, such a declaration made out of court by a dead or otherwise unavailable witness is admissible only upon a showing that the declaration is reliable. We make no attempt here to delineate the quality or quantity of evidence necessary to establish reliability; the question must be left to the sound discretion of the trial court, to be determined upon the facts and circumstances of each case. But, in any case, once it is established that a third-party confession has been made, the crucial issue is whether the content of the confession is trustworthy. And determination of...